Patna High Court
Sheikh Farjan Mian vs Teju Sahu on 2 April, 1998
Equivalent citations: 1998(3)BLJR1863
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This Second Appeal under Section 100 of the Code of Civil Procedure has been filed by the plaintiff against the Judgment and Decree dated 21.4.1988 passed by the 1st. Additional District Judge, Palamau in Title Appeal No. 3 of 1982 reversing the judgment and decree dated 21.12.1981 passed by Munsif, Garhwa in Title Suit No. 8 of 1974. By the impugned judgment and decree the learned lower appellate Court allowed the appeal filed by the defendant and set aside the judgment and decree passed by the trial Court and held that the suit for specific performance of contract cannot be decreed.
2. The facts of the case are not much in dispute. The plaintiff appellant filed the aforesaid suit for specific performance of contract for sale on the basis of an agreement dated 13.4.1972 executed by the defendant in respect of 7 and half decimals of land of Plot No. 115 under Khata No. 43 of village Dipwa, together with a house standing thereon. The plaintiff being in urgent need of money approached the defendant and agreed to sell the property with condition to purchase the same by virtue of agreement. The plaintiff accordingly executed the sale-deed in respect of the suit property for a consideration of Rs. 5,000/- on 13.4.1974. On the same day a registered agreement was entered into by an between the plaintiff and the defendant whereby the defendant agreed to reconvey the suit property if the plaintiff offered the entire consideration money to him within 13.4.1974. The plaintiff's case was that he arranged money and approached the defendant several times and offered the money for reconveyance of the suit property. The plaintiff on 10.4.1974 offered the consideration money in presence of two witnesses and asked him to execute the sale-deed but the defendant put off the matter for 12.4.1974 and agreed to make himself available on that day at the registration office. On 12.4.1974 the plaintiff searched for the defendant in the court compound and also in the Registration Office at Garhwa. He also waited till the court hour but the defendant did not appear. It was alleged that the defendant again promised to execute the sale-deed on 15.4.1974 but the court was closed from 12.4.1974 to 15.4.1974. The plaintiff further pleaded that he sent lawyer's notice dated 13.4.1974 calling upon the defendant to receive back the consideration money and to reconvey the suit land before 16.4.1974 but the defendant refused to accept the money and register a sale-deed. Hence the plaintiff instituted a suit on 16.4.1974 and also deposited the consideration amount in the treasury on the same day. The suit was contested by the defendant respondent by filing written statement in which the execution of sale-deed and the agreement was not denied and disputed but it was specifically pleaded that the plaintiff never offered the consideration amount on any date prior to 13.4.1974 and all allegation of tendering the consideration amount are false and fabricated.
3. The trial Court after hearing the parties and after considering the evidence decreed the suit holding that there was valid agreement and the plaintiff was always ready and willing to perform his part of the contract. The defendant respondent preferred appeal against the judgment and decree of the trial Court. The lower appellate Court by the impugned judgment and decree allowed the appeal and set aside the judgment and decree of the trial Court. The learned lower appellate Court came to the conclusion that the plaintiff appellant failed to establish that he was always ready and willing to perform his part of the contract and as a matter of fact the plaintiff was not capable of paying the consideration amount till 13.4.1974. On the basis of this finding the appellate Court held that the plaintiff is not entitled to a decree for specific performance. Hence this appeal by the plaintiff appellant.
4. This appeal was admitted for hearing by this Court on the following substantial question of law-
Whether the learned Court of appeal below could reverse the judgment and decree of the trial Court on the ground that the plaintiff was not ready and willing to perform his part of the contract despite the averments made to that effect in paragraphs 6, 8 and 10 of the plaint and further in view of the fact that the entire amount of consideration was deposited on the date of institution of the suit.?
5. Mr. N.K. Prasad, learned Senior Counsel appearing for the plaintiff appellant assailed the impugned judgment and decree of the appellate court as being contrary to law and the evidence on record. The learned Counsel submitted that the finding arrived at by the lower appellate Court is perverse in law and is based on extraneous consideration. Learned Counsel submitted that the Court of appeal below the totally ignored the most important piece of evidence that the consideration amount was deposited by the plaintiff even on the date of institution of the suit and prior to that the money was offered in presence of the witnesses. According to the learned Counsel on the evidence brought on record it could have been safely concluded that the plaintiff was ready and willing to perform his part of the contract. Learned Counsel relied upon the decision of the case of Govind Prasad v. Hari Dutt . On the other hand Mr. Devi Prasad, learned Counsel appearing for the defendant respondent firstly submitted that the appellate court after considering the evidence both oral and documentary came to a positive finding that the plaintiff was not capable of paying the consideration amount till 13.4.1974 and there is no evidence that prior to 13.4.1974 the plaintiff was having sufficient fund to pay the consideration amount. According to the learned Counsel the finding arrived at by the appellate Court is a pure finding of fact and therefore this Court should not interfere with the said finding in second appeal. Mr. Devi Prasad, in support of his contention that time was the essence of contract and the plaintiff having been failed to perform his part of the contract, no relief for specific performance can be granted, relief upon the decision of the Apex Court in the case of Smt. Bismillah Begum By LRs. v. Rahmatulhh Khan By LRs. (1998) 1 Supreme 310.
6. Before appreciating the rival contentions of the learned Counsels it would be useful first to look into the agreement in order to find out whether the time was the essence of contract. The admitted facts are that on 13.4.1972 the plaintiff sold the suit property to the defendant by virtue of registered deed of sale. On the same day a registered agreement was also executed by and between the plaintiff and the defendant whereby the defendant agreed to reconvey the suit property if the consideration amount is returned back within 13.4.1974. The relevant portion of the agreement reads as under-
AGAR SK. FARZAN MIAN YA UNKE UTTRADHIKARI YA ASTHANAPAN DINAK 13.4.1974 KE ANDAR YA TARIKH 13.4.1974 TAK KE ANDAR JARSAMMAN MUBLIKE 5000/- RUPYA EK MOOST YA EKI DAFE MUJHE CHUKTI KAR DEN TO MAIN PHIRSE BAZARIYA REGISTRY KEBALA KHUD SE YE JAIDAD WAPAS KAR DUNGA...
From perusal of the terms and conditions of the agreement it is evident that time was made essence of the contract. Under that clause the defendant had agreed that if the consideration amount of Rs. 5,000/- is repaid by the plaintiff within 13.4.1974 or till 13.4.1974 then the defendant shall reconvey the suit property to the plaintiff. As noticed above the agreement in question was to reconvey the property which was sold by the plaintiff to the defendant and therefore, in the agreement for reconveyance the property time was made essence of the contract. The Apex Court in the case of Smt. Bismillah Begum v. Rahmatullah Khan AIR 1998 (1) Supreme 310, dealt with a similar question and after considering the principles laid down by the Federal Court in the case of Shanmugam Pillai and Ors. v. Annalakshmi Ammal and Ors. AIR 1950 FC 38, held that in regard to contracts of reconveyance relating to immovable property time is always essence of the contract and the general principle that in a contract of sale of immovable property time is not normally essence of contract does not apply. Mr. N.K. Prasad, learned Counsel appearing for the plaintiff appellant put reliance on the decision of Govind Prasad v. Harl Dutt (supra) but in my opinion the decision of the Apex Court is of no help to the appellant. In that case the Apex Court although held that fixation of period within which the contract has to be performed does not make the stipulation as to time the essence of contract but the intention to treat time as essence of the contract may be evidenced by circumstances which should be sufficiently strong to displace the normal presumption.
7. In the light of the facts of the case and the principles of law laid down by the Apex Court the only point falls for consideration is whether the plaintiff has been able to prove that the consideration amount was offered by him to the defendant on or before 13.4.1974. The case of the plaintiff is that he arranged money by selling his land and offered the money to the defendant on 10.4.1974 in presence of Hanif Sheikh and Gulam Rasool Sheikh but for unlawful gain the defendant put off the matter on flimsy ground that he would be awfully busy in a contract work till 11.4.1974 and assured the plaintiff that he would go to Court on 12.4.1974. The plaintiff alleged that on 12.4.1974 the defendant did not turn up and, therefore, a legal notice was given on 13.4.1974. The lower appellate Court has considered the entire evidence and found that in fact the plaintiff sold his land for arranging money on 16.4.1974 and thereby he got the consideration money on 16.4.1974. The plaintiff tried to make out a case that although he sold his land on 16.4.1974 but the consideration amount was paid by the purchaser one week before. The appellate Court found that there was no recital in the sale deed executed by the plaintiff that the consideration money was paid a week back. The witness examined on this point was also not worthy of credience. The first appellate Court also considered the evidence of the witnesses in whose presence the plaintiff alleged to have offered the money before 13.4.1974 and considering the entire evidence the appellate Court came to the conclusion that the plaintiff had in fact no money prior to 16.4.1974 and, therefore, the story of offering money on or before 13.4.1974 was a concocted story, 1 must point out at this stage that the finding on the question whether the plaintiff was capable to pay the consideration amount on or before 13.4.1974 is a question of fact and any finding arrived at by the appellate Court is a pure finding of fact and this Court, therefore, in second appeal is not entitled to interfere with the said finding. However, it would be appropriate to discuss the law on this point. It is well settled that there is distinction between readiness to perform the contract and willingness to perform the contract. The readiness means the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. Therefore, in a suit for specific performance besides willingness the plaintiff has to prove his financial position to pay the purchase price. In the case of His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar 1996 (5) Supreme 159, the Apex Court held as under-
There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale-deed to the defendant within 7 days of the execution of the agreement i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bite for the time which disentitles him as time is the essence of the contract.
8. As noticed above the appellate Court has scrutinised the entire evidence adduced by the plaintiff and came to the conclusion that there was no documentary proof that the plaintiff got the consideration amount one week before the execution and registration of sale-deed by him on 16.4.1974. It is the plaintiff's own case that he arranged money by selling his property on 16.4.1974 but the consideration money was paid one week before, meaning thereby before that the plaintiff was not in the capacity to pay the consideration money to the defendant. In that view of the matter, I do not find any infirmity in the finding arrived at by the Court of appeal below on the question of readiness and willingness to perform his part of the agreement. In the case of N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao , the Apex Court held as under-
It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short "the Act'). Under Section 20, the Court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiffs prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.
If in fact the plaintiff had arranged money on 10.4.1974 then he would have purchased stamp paper and got the draft sale-deed prepared prior to 13.4.1974 but no evidence has been led by the plaintiff in this regard. This also falsified the case of the plaintiff that he arranged money prior to 10.4.1974 and offered the consideration money to the defendant on or before 13.4.1974.
9. Having regard to the facts and circumstances of the case, 1 am of the opinion that in the agreement (Exhibit 1) time was made essence of the contract and the plaintiff was bound to offer the consideration money on or before 13.4.1974. Mere deposit of the consideration amount in the treasury on 16.4.1974 will not amount to readiness and willingness on the part of the plaintiff to perform his part of the contract.
10. For the reasons aforesaid, I do not find any merit in this appeal, which is, accordingly, dismissed. No order as to cost.